So to Speak Podcast Transcript: Free speech news: NetChoice, Taylor Swift, October 7, and Satan

Note: This is an unedited rush transcript. Please check any quotations against the audio recording.

Alex Morey: I think it's a grammar thing. You have to like double up that consonant before – like if you were spelling like, “jogging” or – I don't know. I feel like you have to – I don't know. I think we need the two Xs.

Aaron Terr: You're saying if it's one X, it's doxing?

Alex Morey: Right, that's exactly what I'm saying. Yes, it's unacceptable. No.

Nico Perrino: All right, folks, we're going to jump right in today. The past couple of podcasts have been high level, cerebral, focused on one topic. Today's podcast, we're going to do a news roundup. And the biggest news of the week is that we had argument at the Supreme Court in the NetChoice cases. We've talked about them on this podcast before. But just for those of you who have forgotten or might not be familiar with the cases, we had laws passed in the state of Florida and the state of Texas regulating how social media companies can moderate content.

And Florida, the case was Moody v. NetChoice. And the state of Florida made it illegal for social media platforms to bar candidates for office in their state. This was precipitated, so we think, by the states concerns surrounding the social media companies in the wake of January 6th, barring then President Trump from the platforms. And then the law in Florida also bars social media platforms from removing content from a journalistic enterprise. And this was motivated, allegedly, by the reaction to a Hunter Biden laptop story. Some of you might recall that Twitter banned the New York Post article about the Hunter Biden laptop story.

But in Texas, you have a somewhat different law. Which prohibits the platforms, broadly speaking, from removing any content based on a user's viewpoint. If you go to the Fifth Circuit in– the Fifth Circuit decision in the Texas case, where they upheld the Texas law, the Florida law was struck down by the circuit court there. Judge Andrew Oldham wrote in the Fifth Circuit decision that – to generalize just a bit, the Florida law “prohibits all censorship of some speakers”, while the one from Texas “prohibits some censorship of all speakers.” If that makes sense.

So, we had argument in the NetChoice case on Tuesday. I have with us, Aaron Terr, FIRE’s Director of Public Advocacy, Alex Morey, FIRE’s Director of Campus Rights Advocacy, and then for a last minute addition to this podcast, we have FIRE General Counsel, Ronnie London. I pulled him out of a meeting. So, Ronnie, I appreciate you joining us. We'll keep you here shortly just for the NetChoice conversation.

I want to get folks’ brief response to what unfolded in that case, during the oral argument. I think the biggest takeaway is that the justices really struggled to understand the reach of these laws. So, for example, there is the traditional what you might think of social media practice, the news feeds, right? Where people are posting content, and then that content is getting distributed to users in algorithmic or chronological feed. And then they also had questions about whether the law reaches other things that maybe don't involve as much content moderation. Things like Facebook's marketplace. Is Uber a social media platform? And would some of the features of Uber be swept with – in this law? Gmail, Etsy, Venmo, Amazon Web Services.

Justice Elena Kagan suggested that the Florida law is unconstitutional as applied to things like a Facebook feed. But she wondered if it would be legitimate as applied to tech services that are not expressive products, like Uber. Justice Alito, for example, raised the possibility of remanding the case for more discussion at the lower court to kind of better develop the record surrounding what the Florida law applies to.

I want to get your guys’ perspective. Ronnie, I'll maybe start with you. This case is up on a facial challenge. So, what should the justices be assessing with regard to the constitutionality of these laws?

Ronnie London: Well, we must be clear. If you're talking about a law that regulates the internet and online communication, you are talking, by definition, about a law that regulates speech. So, if you start slicing and dicing a law, and saying, “Well, would it apply to Uber? Because part of Uber is purely conduct in transactions between drivers and passengers. And being told where to meet. And how far away the car is.” Okay. That has nothing to do with this law. And if you asked any of the legislators who voted in favor of it, I'm sure they would tell you that that was not in their minds at all.

Now, to the extent that there are expressive elements of Uber – such as comments on particular drivers, particular passengers, ratings, and other things – arguably, it could apply to those. I mean, certainly we know it was meant to apply to the large social media platforms that are channels for communication by all of the user.

Nico Perrino: That was the motivation for passing the laws.

[Crosstalk]

Ronnie London: Yeah, that's right. That's right.

Nico Perrino: I think it's pretty clear.

Ronnie London: And so when you're talking about this, one of the things that came up in the argument early on was, on this overbreadth argument, they kind of harped on this idea that there are – there is a plainly legitimate sweep, and so, therefore, the statute should be constitutional. Now that's not the test. The test for substantial over – for overbreadth in the First Amendment context is whether the law prohibits a substantial amount of protected speech relative to its plainly legitimate sweep.

So, first of all, I think there is a threshold question of whether a law like, this that would compel speech – and let's not forget that. These are not laws that would say social media platforms may not carry X, Y, or Z content. They're saying you must carry X, Y, or Z content and not discriminate based on viewpoint, whether you want the content on your service or not.

Nico Perrino: So, as an example. Because I think Paul Clement – who was arguing for NetChoice in both of these cases – said that if, for example, under Texas statute, a social media company allowed content about suicide prevention on its platform, it would also have to allow content advocating or encouraging people to commit suicide. Because to not allow that latter content would be viewpoint discriminatory, right? Or if it allows pro-Semitic speech, it would also have to allow anti-Semitic speech.

Ronnie London: Well, that's right. And even –

Male Speaker: Right.

Ronnie London: I'm sorry, Aaron. Even to the extent that – this would eliminate the ability of social media platforms to have any standards of conduct or content on their platforms. Because we know, for example, from Mattel versus Tam, that giving offence is a viewpoint, right? We know that being sex positive is a viewpoint. So, if you wanted to keep pornography off your social media platform, or you wanted to keep hate speech off your social media platform – put aside whether you think that's a good idea or not. Everybody might have different opinions on it – you simply would not be allowed to do it. So, this is a compelled speech statute.

So, getting back to substantial overbreadth, the first question is, does a statute that compels speech have any plainly legitimate sweep? Last term, in 303 Creative – which was another compelled speech about a website designer having to provide website wedding design services for same sex couples – the court was pretty clear that we simply don't compel speech under our First Amendment jurisprudence. And there's a long line of cases going back to the parade cases, Hurley, and going back to Barnett, where we don't compel speech. And you don't subject it to strict scrutiny, or overbreadth, or anything. You just don't compel speech. Because it forces someone to say what's not in their mind.

So, there's a threshold question of whether there's a plainly legitimate sweep here at all. If there isn't, then full stop, it's over broad. But even if you can conceive of a plainly legitimate sweep here, the substantial amount of content that this would require social media platforms to include – that they might not want to include – grossly outweighs whatever the plainly legitimate sweep might be. And it's hard to define what that plainly legitimate sweep might be. But surely, it pales in comparison to all of the things and the complete lack of control that social media platforms would resultingly have by not being able to discriminate based on viewpoints. Sorry, [inaudible] [00:09:07] you off.

Nico Perrino: It seems like the suggestion is that the plainly legitimate sweep would involve regulating what you might term as like internet infrastructure. Things like Amazon Web Services, or Venmo, or Gmail. People can take issue with that characterization as internet infrastructure. But things that don't have as much of an expressive purpose. And it seemed like Paul Clement – and then the Biden administration Solicitor General, Elizabeth Prelogar – kind of had a disagreement surrounding what could be regulated under the First Amendment when we're talking about the different applications that theoretically could be brought within the sweep of both laws. Aaron?

Aaron Terr: And Clement pointed out that the states opposed preliminary injunctions of these laws on the theory that social media platforms removing content is unprotected censorship conduct, and not a protected exercise of editorial discretion. And therefore, it doesn't even implicate the First Amendment. So, their argument was really focused on the issue of social media platforms’ content moderation, and what appears in people's newsfeeds, and on their personal feeds. And not what Uber is doing.

Nico Perrino: Yeah.

Aaron Terr: So, –

Nico Perrino: It was weird to hear this all brought up during oral argument because you just didn't see any of this discussion in the decisions at the circuit courts.

Aaron Terr: Yeah.

Nico Perrino: Or at least I don't recall it.

Aaron Terr: Yeah. One of my big takeaways though is that I think most of the justices – and Ronnie, you tell me if you agree – seem sympathetic to the argument that forcing private social media platforms to host speech against their will is fundamentally at odds with the First Amendment. So, on that core constitutional question, I think that choice is in good shape.

Ronnie London: Yeah, no, I would agree with that. I mean, if the net result of this is some kind – and I can't imagine how it would be. But if the ruling was, “Okay, this” – and remember, this is a facial challenge. And the proponents of this –

[Crosstalk]

Nico Perrino: Can you remind our listeners, Ronnie, what a facial challenge is, as opposed to as applied?

Ronnie London: Right. So, a facial challenge basically says, “This statute, and all of its application, should be enjoined because it's unconstitutional.” That doesn't necessarily mean that every single one of its applications is unconstitutional. But, for example, with respect to an overbreadth challenge, the plainly legitimate sweep is vastly outweighed by the constitutional speech that it would regulate. Or on a compelled speech, it compels speech on its face. Therefore, there's no applications that would be permissible. Whereas as applied, you're talking about applying the statute to particular parties or litigants in specific ways. And in those respects, the statute should be enjoined and is unconstitutional.

Here, we've got a facial challenge. And the advocates for the government kept making a point that this is a facial challenge, and facial challenges should be disfavored. And we don't really have a record developed on how this applies to any of these particular respondents here or the particular social media platforms. And therefore, they have a heavy burden.

But Paul Clement did remind the court at a certain point, saying, “Hey, we have a long and rich history of facial challenges against unconstitutional regulations that restrict speech or compel speech in this country.” So, I mean, I think that really is – should be less of an issue. I mean, you have to really buy into the argument. You almost have to accept the common carrier argument, to get to the point where you say, “These regulations, in significant ways, don't regulate speech, but rather regulate conduct.” And I mean, we've discussed in a previous podcast this case in particular, and what the – some of the weaknesses are with the common carrier argument.

Nico Perrino: Yeah. It'll be interesting to see how everything comes out here, and if they do remand the case for – as justice Alito suggested, for more discussion at the lower court levels to better develop the record. But Matthew Schaefer, who's been on this podcast before, I think had a really smart take away from just the general overbreadth discussion with respect to First Amendment facial challenges. He says, on X, “If you take the approach that many of the justices are taking to facial challenges and the evidentiary record today, you are encouraging state legislators to adopt ambiguous and sweeping laws restricting speech, and thereby putting the onus on the speaker to find their way out.” Which just isn't how we do First Amendment facial challenges currently.

[Crosstalk]

Ronnie London: Well, that's right. And the other thing is, I don't know why you need to remand for further proceedings to develop the record. You've got a preliminary injunction in place. That's not where a case ends, right? I mean, certainly the parties could move to have the preliminary injunction converted into a permanent injunction, and that would be the end of the case. But oftentimes in the case, you'll get a preliminary injunction, and then you will move on to – if there are disputed questions and material fact, you move on to summary judgment. And you have discovery. And you develop the record. And then the next phase would be an injunction proceeding on summary judgment, where you could have all of that developed.

I mean, don't forget. I mean, these statutes, in both cases, in the Fifth Circuit, the Eleventh Circuit, and in the district courts in those cases, they are here on a preliminary injunction, not a final judgment. So, there's still plenty of proceedings that can happen, even if you just let the injunction stay in place and let the courts proceed in their natural course.

Nico Perrino: I just don't see how you rule for the state of Texas in particular here, and not destroy how social media operates.

[Crosstalk]

Ronnie London: Oh, absolutely.

Nico Perrino: What distinguishes one social media platform from another is how they discriminate based on viewpoint. Now you might disagree. And I have plenty of disagreements with the viewpoint discrimination that's been used by some of the social media platforms historically. Often very arbitrary and without any sort of explanation. But one of the reasons that TikTok is more successful than “pick your social media platform”, or X is more successful than Threads, is because they give users content that they find more engaging. And that's because they feed up, algorithmically, more interesting content that is better tailored to the user’s interest.

If you can't discriminate based on viewpoint, and platform some speech higher than other speech, then you just can't have a social media platform that's distinguished in any meaningful way from any other social media platform. You're essentially destroying that industry, at least within the state of Texas.

Aaron Terr: Yeah. And Paul Clement pointed out that you're basically – you're pressuring the platforms to just avoid any type of liability by just presenting a totally uncrated feed to all their users. So, you're not prioritizing any posts above any others, and it just becomes like a, I think he said, he called it gobbledygook. Like, you're just gonna look on the Twitter, and it just – you’re going to see like things in different languages and stuff that's not of interest to you.

And of course, – right? – we all know that's not how social media works. The whole point is that these algorithms that the employer are tailoring content to users, things that interest them, the things that they want to see. And yeah, you’re just kind of getting rid of all of that, that essential feature of social media.

Ronnie London: Yeah, I mean, that's – I was gonna say, that's always, to me, been the core failing of the common carrier argument. And that is people are saying, “Oh, you are discriminating against certain viewpoints. And you are deep platforming or diminishing the viewpoints that you don't agree with, or that you don't want on your platform. And therefore, we need to regulate you like a common carrier.”

Now a common carrier is an entity that holds out service, non-discriminatorily, to the public, on the same terms and conditions across the service. Here, what you seem to be saying is, under the common carrier argument, is, “You are not acting like a common carrier because you are discriminating based on who you're going to provide service to, based on the viewpoints and based on the content of their communications.” And therefore, the solution is to say, “You are a common carrier, and now we can regulate you like one.” It's a complete mismatch, a complete disconnection between the alleged problem and the proposed remedy.

Nico Perrino: Alex, did you have any final thoughts here?

Alex Morey: Well, I just think it's so interesting that the user experience is so critical to the products that are Facebook, and Instagram, and X. Like you said, Nico, that is the product that they're selling. And so to sort of transform them into something like a phone company or internet service provider just seems fundamentally wrong. What I will say though is, listening to the to the oral arguments, I would not be surprised if they remand down. I hope they don't. I hope we get resolution. Resolution is very urgently needed in this space.

Of course, that said, if they go against FIRE’s views, then I hope they remanded and go slow. But it would be much better to get a quick result in our favor, in favor of NetChoice. This seems clear to us, of course. We're FIRE, and we always take the free speech stance.

Ronnie London: Yeah. And I should correct something I said earlier. Because both cases are up on a preliminary injunction. But you're right, Nico. In Texas, the preliminary injunction was denied. So, the court would have to – currently, the status in Texas is the statute is enjoined or being held in abeyance pending the outcome at the Supreme Court. So, either that arrangement would have to remain in place, or the court would have to reverse the denial of the preliminary injunction, and send the case back down for further proceedings so the statute remained enjoined while further proceedings happened.

Nico Perrino: Yeah, and it was enjoined by – or stayed by the Supreme Court. And I think a split decision, 5 – 4, if I'm not mistaken.

Ronnie London: Yeah. Whereas in Florida, the district court granted the preliminary injunction, and the Eleventh Circuit upheld it.

Nico Perrino: Well, we're going to be discussing this case and some of the other blockbuster cases in late March on the podcast, after the NRA v. Vullo and Murthy v. Missouri cases. Which I think are being argued at the Supreme Court, if I'm not mistaken, sometime in late March. Ronnie is going to join the podcast along with FIRE Chief Counsel Bob Corn-Revere, so stay tuned for that. In the meantime, Ronnie, I thank you for taking this last minute request to join the podcast to discuss NetChoice. I'll let you get back to your meetings.

All right, folks, let's turn to our next topic of conversation, which is everyone's favorite pop artist, Taylor Swift. So, for those who follow Swiftdom and the First Amendment, you might be familiar with the recent cease and desist letter sent by Taylor Swift's attorneys to Jack Sweeney. Jack Sweeney, this name might sound familiar, is a junior at the University of Central Florida who runs social media accounts that track celebrity jets. In 2022, he came under fire by Elon Musk for tracking Elon Musk's jet. And he runs these accounts, in part, to kind of see where these billionaires and celebrities are going. And also in part –

Alex Morey: Well, he's a climate change guy, right?

Nico Perrino: And also, yeah, in part, to track the emissions of the private jets that are being used by these celebrities, and millionaires, and billionaires. And he uses, to track these jets, publicly available data from the Federal Aviation Administration, and data that's provided by volunteer hobbyists to have tools to track aircraft via aviation signals that are broadcast from the airplanes. So, like Elon –

Alex Morey: People still do that apparently. They –

Nico Perrino: Yeah, I guess. And I try to do some background as to, how do they do it? I saw an article that said, “Many aviation hobbyists feed their raw data into independent websites, such as an ADS-B Exchange.” The FAA, in full disclosure, does allow some plane owners to request that their flights be hidden in the federal data that is revealed, so it can't be found on popular consumer websites like FlightAware. But you can still access these data because these signals are being broadcast. And so the aviation hobbyists are able to access those signals, and then feed it into this ADS-B Exchange. Whatever that is.

Alex Morey: And then the info is unhidden.

Nico Perrino: And then the info is unhidden. So, long and the short of it is, Elon Musk came after this guy, Jack Sweeney, for tracking his jet. And now, on X, which Elon Musk owns, you can't post this flight information until something like 24 hours after a flight has taken off or landed.

Aaron, I know you've done some research into this. Other platforms allow for sort of the immediate sharing of information as to when a flight is taking off or landing, correct?

Aaron Terr: Yeah, that's right.

Nico Perrino: So, enter Taylor Swift now, who’s lawyers have sent a cease and desist letter to Jack Sweeney saying that these flight tracking social media accounts represent “direct and irreparable harm, as well as emotional and physical distress”, constant state of fear Taylor Swift is in for her personal safety. And they also say that, “While this might be a game to you, Jack Sweeney, or an avenue that you hope will earn you wealth or fame, it is a life or death matter for our client.” They further allege that there's no legitimate interest in or public need for this information, other than to stalk, harass, and exert dominion and control. I think Jack might argue that there is public interest insofar as they – he is using these accounts to track the emissions of private jets.

The contention is that this is doxxing. Now, doxxing is a concept that we've seen in the news quite a bit recently. It arose from the computer hacker world in the 1990s, during the early years of the World Wide Web. And applied when a group of hackers exposed the identity of fellow hacker, who sort of violated the norm of the hacker community. But there has been a lot of discussion about its implications via the First Amendment.

Aaron, do you want to tee us up there?

Aaron Terr: Yeah. I think anytime the subject of doxxing comes up, it is good to define terms too. Because people use the word to describe a lot of different things. Especially in our current political discourse, doxxing can sometimes just be another term for basically disclosing any information about somebody without their consent. But that's also a way to describe a lot of what we call journalism. Or people apply the doxxing label to disclosing information about someone that's just not really private.

Nico Perrino: Or public, you mean?

Aaron Terr: Yeah. Right. Right. About someone that – of information that's public. Another example I like of that is, there was a Seattle journalist who was at a rally against police brutality. And he dropped his press pass on the ground. And a police officer found it. And he tweeted it out, a picture of it, and made some kind of joke like, I think he said like, “Am I part of the resistance now? I have your press pass.” And the journalist accused the police officer of doxxing him. Now, the press pass just had his name, his photo, and his media affiliation. Which is generally information that you'll find on any news website about a journalist. So, question whether or not that is really doxxing.

Now granted, the harder question would be when someone intentionally releases personal info about someone, like a phone number or home address, without their consent, with some sort of malicious intent. Like they want to humiliate that person, or they want other people to harass them, and just basically give them a lot of unwanted attention.

But even then, the First Amendment is generally going to protect that type of speech. Because the First Amendment protects the publication of truthful information, particularly on matters of public concern. Because again, that's a lot of what journalism is. And a core purpose of free speech and free press is to bring to light information that's in the public interest. And sometimes that might include sensitive or unflattering information about a person that they would prefer to keep private.

Nico Perrino: Yeah, there are already laws against some of the things that I think folks are concerned about. There are laws against true threats. There are laws against incitement to imminent lawless action, harassment. There’s –

Aaron Terr: Yeah, stalking.

Nico Perrino: – intimidation. There's the privacy tort of public disclosure of private facts. But doxxing is often, as you say, involve – the allegation of doxxing also often involves the publication of truthful information.

Aaron Terr: That is often, it has some sort of – that's in the public interest in some way. Even the example of like, disclosing somebody's address, there are times when that can actually be a matter of public concern. Believe it or not.

So, one example of that is during the 2021 New York City mayoral race. There were questions about Eric Adams, who's now the mayor of NYC. But when he was a candidate, there were questions about his residency. Journalists were investigating this issue. They were looking at his campaign disclosure reports, tax filings, and other publicly available documents to try to get to the bottom of this question of, where does Eric Adams actually live? Does he actually live in New York City? And some of the news reports contained addresses of his properties and photos of his properties. But in that case – right? – it was relevant to an issue of public concern, whether this candidate was misleading voters about living in the area that he's trying to govern.

So, yeah. And I think you're right. Like existing law already addresses a lot of the harms that people are concerned about when it comes to doxxing. And when you look at some of the states’ laws that they’ve passed specifically against doxxing, they tend to have really broad and vague language that's concerning, and that violates the First Amendment. And it covers a lot of speech that many people would consider to have a legitimate or beneficial purpose.

So, a general ban on just divulging personal information with the intent of causing the target humiliation to stress. It covers a lot of activity that many people would say is a legitimate way of holding people accountable for wrongdoing. And with some of these laws, you don't even have to intend the bad outcome. It's just enough if you should have reasonably foreseen it. So, you can see how that can go wrong. Because so the journalist publishing this type of information, just have foreseen that it was going to result in some harassment of the person that they're talking about.

I mean, that's – you just have to be very careful when you're passing laws that are holding people legally responsible for third parties’ bad conduct. Because then there's a lot of stuff that you're not going to be able to say. Just because anytime you speak publicly about someone, right? Especially if you're someone on Twitter. You have a lot of followers. You call someone out. There's always some risk that some lunatic is going to harass that person, or threaten them, or whatever.

But you can't then just say, “Okay, then we can never just speak publicly – say negative things about people in public because someone else might do something bad.” I mean, punish the person who does that, but don't punish the speaker.

Nico Perrino: I think there's one thing – right? – when you're publishing publicly available information, such as an address, for example, that you can find. How that information is used might be harassing. It might result in a true threat. It might result in some other sort of conduct that is not First Amendment protected. But the mere sharing of information that people would like to be kept private, but is not, such as crime reports, for example. Whether someone is accused of a crime or a victim of a crime. But the more tricky question – right? – is around unlawfully obtained information.

Alex, I would like you to kind of share what the perspective is on people who publish unlawfully obtained information.

Alex Morey: Well, the Supreme Court has looked at this. The case is Bartnicki v. Vopper. Discussing what are the obligations of – or I guess, what can journalists be held liable for if they publish information that they've lawfully obtained, but that which was unlawfully obtained? And –

Nico Perrino: By a source, right? So, you have a source that provided this information.

[Crosstalk]

Alex Morey: By a source, right. So, you've got some source that devises some way of getting this information that may or may not be above board. In this case, not above board. But then the journalist gets this information and republishes it. Are they liable? And the Supreme Court said, “No, they have protection for publishing this information.”

These are core First Amendment principles that – we're always hearkening back to this idea that, in the US, under the First Amendment, we want as wide open, robust discourse about issues of public concern as possible. And if we start hacking away at, “Well, you're liable for this” or “This information is publicly available, but you can't publish it because someone was annoyed by it or they're worried that they might be harassed.” We narrow that universe of public discourse.

Now, that's not to say – I mean, harkening back to Taylor Swift. Just as a Swifty, who is also a First Amendment lover, this was devastating. Because I'm like, “What is Taylor Swift doing? Like trying to – why does she have her goons out trying to crush the poor guy that's just publishing her flight paths or whatever?” But that's not to say – I mean, I'm sure she is scared about people stalking her. And I'm sure when people get called out on X, formerly Twitter, it is nerve – like, I don't even like when people retweet me. Nobody likes to be criticized in this social media world.

That said, the First Amendment already does a really good job of figuring out when criticism or journalism crosses the line. There's a high bar, but it's not insurmountable. When something amounts to harassment, or a true threat, or incitement, that is not protected. And FIRE is never going to be out here saying, “Oh, we should protect that”. But if you start, again, lowering that bar, then we get into very tricky territory where it's going to be near impossible to police. And what instead is going to happen is a lot of speech is going to be chilled. And a lot of public discourse about stuff that's important.

This Jack Sweeney guy, I'm sure he does love the fame. I'm sure he does love the notoriety. But he seems to care genuinely about billionaires trotting around in their private jets, ruining the climate. While we're over here recycling our – drinking out of paper straws and trying our best to recycle. So, I mean, there is public interest in a lot of this stuff.

Nico Perrino: Yeah. A lot of journalism would be impossible, right? So, Daniel Ellsberg delivers to the New York Times, the Pentagon Papers. Which kind of blew the lid open on the Vietnam War. And the Supreme Court rules that the Nixon administration can issue a prior restraint against the New York Times and other publications that wanted to share the information that provided to him. We see reports every day in the news of people. Just look at the Trump administration, and how leaky that was. Sharing private information on the goings on within big corporations, or within the government, to journalists who then published that information. Sometimes naming their source and sometimes not.

And in that Bartnicki v. Vopper case that was referenced, Alex, the Supreme Court, in 2001, said it doesn't matter if a source obtained the material unlawfully. As long as the publisher – in this case, the New York Times – did not participate in the illegal action, and merely received the information from the source.

So, even if, for example, in this ADS-B Exchange that is used to gather the broadcast signals from aviation jets and share it with the public. Even if the mere gathering of that broadcast is illegal, so long as Jack isn't involved in the gathering of that broadcast and the sharing of it publicly, he can then take what these people have gathered and shared, and report on it. Which might be what he's actually doing. It's no different than, for example, the New York Times reporting on the Pentagon Papers case.

Alex Morey: Or reporting on reality winner leaks or the Chelsea Manning stuff. A lot of really important journalism, for time immemorial, has been rooted out. At its source, someone is leaking this stuff unlawfully. And you know …

Nico Perrino: Well, you brought up Chelsea Manning and Julian Assange. I think that's important. Because right now, there's a case against Julian Assange and WikiLeaks for the sharing of the information that was provided by Chelsea Manning. And a big sticking point in that case is whether Julian Assange actually assisted Chelsea Manning in procuring that information. Which would not protect him from certain liability. But if he merely just received it, and Chelsea Manning was the only person alleged to have or actually participated in the taking of that classified information, then Julian Assange should be free to report on the information provided to him by a source. In this case, Chelsea Manning.

Yes, go ahead, Aaron.

Aaron Terr: No, yeah. And of course, the government can still punish Chelsea Manning, right? Because –

Nico Perrino: Yes, and they did.

Aaron Terr: And they did. Yeah. And the court said in Bartnicki, there's a line in there that says, the normal method of deterring unlawful conduct is to impose an appropriate punishment on the person who engages in it. So, yeah. I think that that's important. And in the Julian Assange case, he's charged under the Espionage – it's like 17 charges under the Espionage Act. And the vast majority, all of them except that one, have to do with him receiving or publishing information from a source.

Like you said, there's that one charge that alleges that he conspired with Manning to try and crack – he tried and failed to crack a password to some government database somewhere where they didn't have authorization to access. But everything else is about his publishing activity.

And the Espionage Act is – I actually went back and read the language of it. It's just such a vague and overbroad law. It criminalizes receiving or sharing classified information related to national security from any source. If you have reason to believe the information will be “used to the injury of the United States.” On its face, that seems to make it illegal just to read WikiLeaks or like, tweet a link to it. Which I think is wild.

Nico Perrino: Yeah. It would render the Pentagon Papers case wrongly decided. Now, of course, the Pentagon Papers case and the interpretation of the Constitution by the Supreme Court supersedes any sort of statute like the Espionage Act. So, the Espionage Act should be unconstitutional under any plain reading – or at least that portion of the Espionage Act – under any plain reading of the Pentagon Papers case. And this was a case – right? – or this was a statute – right, Aaron? – that was passed surrounding World War I, right? To criminalize dissent and opposition to that war in the United States.

Aaron Terr: Yeah, it just has so many bad provisions in it. Again, a major purpose of the First Amendment is to enable the press citizen journalist activists to act as government watchdogs. Potter Stewart said, “Without an informed and free press there, there cannot be an enlightened people.” And that's often going to entail revealing damning information about the government that it would rather keep secret. Publishing leaks can expose government corruption, malfeasance, or like in the case of the Pentagon Papers, lies to the American public.

Nico Perrino: In this case, the justifications for the war in Vietnam and how it was going.

Aaron Terr: That's right. Yeah, there was information in there about the American’s history – or the United States history of involvement in Vietnam, escalating the war. Yeah, in democracy, the press needs freedom to determine when publishing that information is in the public interest. Especially given the governments incentives – right? – to hide more information than is necessary. And in fact, Nixon’s solicitor general, Irwin Griswold, who defended the government in the Pentagon Papers case, later admitted that there was no trace of a threat to national security in those documents. Which is amazing, right?

Nico Perrino: It may be tough be a lawyer, can't it?

Aaron Terr: Yeah.

Nico Perrino: Especially one for the government.

Aaron Terr: Yeah. Which is not surprising because they were documenting US activities in Vietnam. At the time that the New York Times and the Washington Post published the Pentagon Papers, it was about activities that had taken place like years, if not decades before. So, it wasn't a threat to national security of like, the government's current war efforts in Vietnam.

Nico Perrino: Yeah, these doxxing stories have been in the news in other contexts as well. Some of our listeners will be familiar with the case at Harvard. So, October 7th happens, right? In response, the Undergraduate Palestine Solidarity Committee at Harvard – which I guess is a consortium of different student groups – issued a statement. They called Israel entirely responsible for the violence on October 7th. This open letter was cosigned by 34 Harvard student groups.

And in response, folks who disagreed with the contention that Israel was entirely responsible for the violence on October 7th, drove trucks around campus, around Harvard's campus, with the names and some publicly available information about members of these 34 student groups. This was called doxxing. This was widely criticized. There had, in addition to the trucks, been some websites put up in the days following, that listed the personal information of students linked to the clubs that had signed on to the statements. Including full names, class years, past employment, social media profiles, photos, hometowns. That sort of thing. Two of those sites had been taken down by Google subsequently for violating Google's terms of service.

But Alex, what is your thinking about the effort by some of the critics of this open letter to drive around trucks? Is that protected speech?

Alex Morey: Protected but ill advised. So, this is one of the stickier points when we're First Amendment advocates. I also do head up our campus work. And we are always, of course, guided by First Amendment principles. We just talked about the flimsiness of doxxing definitions, and what really does – is it just publishing? Is it journalism? Or is it something different? Obviously, I don't think people would argue that this is journalism. I think this –

Nico Perrino: This isn't the New York Times reporting on the Pentagon Papers.

Alex Morey: Yeah. I mean, clearly this is an advocacy group that is wanting to at least raise awareness about this, but doing it in a way that students are saying like, “This is freaky.” We're seeing that. I mean, students are telling FIRE, speaking out to me, and saying, “I don't like this. It's making me feel scared. I'm worried that people are going to come to my house or harass me.” That said, we're not hearing a lot of that stuff actually happening. So, it's like, we're fearful that it's going to happen, but it's not actually happening such that it would – that people are getting subsequently arrested for criminal harassment, or stalking, or that sort of thing. So, I mean, that's a good thing.

So, that said, protected speech, but especially in the campus context, we really don't like to see this kind of expression. Because it sort of diminishes the overall campus climate where people can have open and productive debates. If you've got these sort of third parties driving around saying like, essentially like, “We think you should go harass these people. Or you should know who they are. You shouldn't give them jobs.” By definition, undergrads especially are learning. They're here to test out their civic engagement muscle, and build that. And figure out, “How do I dip my toe in?” And if people are responding to that by being like, “You should never give this person a job”, that's – as a society, I don't think that that is a productive way of engaging with our newest adult members. So, again, it's really tricky. But again, nothing illegal about these billboards.

Nico Perrino: Well, yeah.

Alex Morey: But there's a ick factor for sure.

Nico Perrino: Nobody's immune from criticism, right? So, if you sign on to this open letter, you can expect criticism. I think some of the problem that you're alluding to, Alex, with the use of these trucks – that according to the people who drove them around, is intended to deter employers from hiring these students – is that it chills expression. Is that it chills people's participation in the conversation surrounding the October 7th attacks. And that it's meant to do so. It's meant to scare people from having an opinion. So, while it can be protected, it can also have a chilling effect. Correct, Aaron?

Aaron Terr: Exactly. Yeah. And I think that there's – I agree. I would prefer to see a norm against – the general norm against this type of kind of public shaming behavior. Because it's not –

Nico Perrino: This is an attempt at cancel culture, right? Like this is, –

Aaron Terr: Yeah, right.

Nico Perrino: – cancel culture.

Aaron Terr: But it is something to deal with through norms, I think, right? It is.

Nico Perrino: Yeah.

Aaron Terr: So, this type of shame is often unproductive. Trying to get someone fired for their speech is bad. But at the same time, it's not the government's role. The government shouldn't be trying to distinguish between good and bad doxxing, or good or bad forms of public criticism. So, some speech may be unethical and have some sort of chilling effect. Doesn't necessarily mean it should be illegal.

And this is, yeah, this definitely is protected speech. It's on a matter of public concern. But yeah, there's still a concern that it might make some of those students afraid to speak out on third rail issues in the future. That this sort of public shaming isn't conducive to a culture of free expression and constructive dialogue. But you also, at the same time, want to be careful that you're not policing too hard the way that people engage in public criticism. There's a debate to be –

Alex Morey: We've certainly seen universities do that. That's one of their favorite things to do.

Aaron Terr: Right.

Alex Morey: So, yes, I'm not encouraging that.

Aaron Terr: Yeah. Yeah.

[Crosstalk]

Nico Perrino: Yeah. The problem is, if you forbid the sharing of truthful information – now we didn't discuss, in the previous conversations, sharing of untruthful information. Which is not always protected speech. But if you forbid the sharing of truthful information under some sort of vague definition of doxxing, student activists are going to use that all the time to silence and censor their political opponents. And we've seen it attempted in that way on campus over the past decade or two since doxxing has become kind of part of the public lexicon.

But Aaron, did you want to share one last word before we moved on from this doxxing [inaudible - crosstalk] [00:46:21]?

Aaron Terr: Yeah. Only that I think that the upshot of all this is that universities, the government, should stick to punishing actual unprotected speech that falls into the narrow First Amendment categories. Like, true threats, incitement to immediate violence. Harassment is unprotected. But yeah, unless you're falling into one of those narrow and well defined categories, then that speech, we should just allow the debate to happen.

Nico Perrino: One of the interesting things about doxxing – we're working on an explainer on doxxing for FIRE’s website right now – is how do you spell it? Is it D-O-X-X-I-N-G? Or is it D-O-X-I-N-G? I think we're going with the double X, if I'm not mistaken, after some –

Aaron Terr: I like to go with 3 Xs. But –

Nico Perrino: You might be the only person on the internet using that. But it seems just as justified perhaps as 2 Xs or 1 X. But I don't want to –

Alex Morey: I think it's a grammar thing. You have to like double up that consonant before – like if you were spelling like, “jogging” or – I don't know. I feel like you have to – I don't know. I think we need the two Xs.

Aaron Terr: You're saying if it's one X, it's doxing?

Alex Morey: Right, that's exactly what I'm saying. Yes, it's unacceptable. No, no. There’s –

[Crosstalk]

Nico Perrino: It’s like coppa, copa. It's just like, you never know how to pronounce these things with one or two Xs. Or one or two of the same letters.

In any case, I don't want to venture far from post October 7th controversies. I want to move now to Princeton University. Which has these – this no contact order policy that has been wielded in some weird ways. So, for example, back in February of 2022, a student who was a member of the Princeton Committee on Palestine requested a no contact order in response to a journalist’s coverage of that student group and a protest that it was organizing. The student had gotten a no contact order. But it was weird because the journalist who was the recipient of that no contact order, had communicated with this PCP leader only once.

It’s weird to use PCP as the shorthand for Princeton Committee on Palestine. But that's what it is. And the journalist had only communicated with this leader to confirm facts and quotes prior to publication of an article about a protest the leader was involved in. Princton –

Alex Morey: All seems normal.

Nico Perrino: All seems normal, right?

Alex Morey: Yes.

Nico Perrino: So, a journalist reaches out to you for – to confirm facts or get a quote, and you get a no contact order preventing you from communicating with the subject of your story ever again.

[Crosstalk]

Alex Morey: Well, that's the policy that Princeton had. And I say had because FIRE helped get rid of it.

Nico Perrino: It sure did. It sure did. I reviewed our coverage of it, Alex. And it seemed like the order was issued pursuant to its Title IX sexual assault policy. It didn't even make any sense. The policy allowed any student to seek a no contact order or no communication order due to interpersonal conflicts. The student in this case, who received a no contact order, Danielle Shapiro, wrote about it in the Wall Street Journal. And it was effectively amended. FIRE got involved.

But there was a second incident that arose on November 9th of last year, when a journalist with the Princeton Tory covered a campus protest held by students for Justice in Palestine. And while the journalist was recording footage of the protest, a graduate student allegedly attempted to block the journalist’s camera, and then followed her around as she tried to cover the event.

Alex Morey: And we've been seeing a lot of this, post October 7th. Where journalists are trying to cover events, and people are saying, “We don't feel safe with you trying to cover this.” And so there's been – post October 7th has been tough in this respect.

Nico Perrino: The journalist reported this incident – that kind of interfering with their journalistic work, the coverage of an event happening in a public space – to a public safety officer. But the officer blamed the journalist for “inciting something” and did not intervene. And then the graduate student allegedly continued to obstruct the journalist. Allegedly pushing her and stepping on her foot. And after the protest –

Alex Morey: To add insult to injury.

Nico Perrino: – went and got one of those no contact orders against the journalist.

[Crosstalk]

Alex Morey: Because Princeton let you get no contact orders against anyone for essentially any reason.

Nico Perrino: Yes.

Alex Morey: Which is insane.

Nico Perrino: And the journalist goes to the dean – right? – and says like, “How do I do my journalism if I can't contact my sources?” And the dean –

Alex Morey: The dean’s like, “I don't know, actually. You might just want to not contact them anymore.”

Nico Perrino: Yeah. So, what’s like –

[Crosstalk]

Alex Morey: It was insane.

Nico Perrino: So, what's going on here?

Alex Morey: Go ahead, Aaron.

Aaron Terr: I was just going to say, it's kind of nice to just have a get out of jail free card basically, for any negative press coverage. I mean, it's not like –

Alex Morey: Right. And that's exactly how these Princeton – these Ivys, they're smart. They figured out, at least a few of these folks were like, “I can just get a no contact order if I don't like them covering my leadership of this organization, or this protest, or whatever.”

No contact orders can be an incredibly important tool. They can be used when there is proven interpersonal violence between students or faculty. They can be used as an interim measure, for example, where one student reports that there was some kind of altercation, but the university can't immediately investigate it. So, for the next 24 hours, they impose a no contact order until the next business day they can investigate it. FIRE thinks that that is a proper use.

But here, we have a situation where there was this very vague policy that students figured out they could use as this weird loophole. And even worse implementation. So, the policy, I think at one point, had said something like you needed to at least contact the person that you were requesting a no contact order against. And say like, “Hey, I don't like your behavior. Can you resolve it before?” Then Princeton would move on to implementing the no contact order. That was what the policy said.

But in practice, what was happening was there was none of that. There was just you asked for it and it was granted. There was none of this. No due process. Princeton wasn't even reaching out to these journalists saying like, “Hey, what's going on here? What's your side of the story? Should we have a hearing?” They were just slapped with these no contact orders. Sometimes Princeton calls them no communication order. They're very similar. They effectively do the same thing in making journalists not able to do their job.

So, the good thing is that once FIRE got on this, and several of the – we worked with our friends at the ADL, Anti-Defamation League, they – we worked together to write to Princeton and say, “Hey, this is absolutely crazy.” And they changed the policy within 24 hours. Which is kind of weird again. Because we had actually, FIRE alone, had written to Princeton a year ago, when we first heard of this situation with the – there was an initial journalist, Danielle Shapiro, like you said, Nico, who had written about it in the Wall Street Journal. And Princeton sort of ignored us.

But everything has changed after October 7th. The stakes have been raised. And I guess where they wouldn't listen to FIRE in the beginning, now they will listen to FIRE in the ADL. I don't know. But we're just happy that it got changed. And now hopefully journalists – student journalists at Princeton can cover stuff without getting worried that – being worried that they're going to be slapped with some kind of no contact order.

And that's so formal too. And scary. Like, if you're a student and you have a no contact. Like, who knows? When you're a grad student, do you have to report that to get into grad school? Like, “Have you ever been subject to a no” – I mean, that's the kind of thing that if you have to reveal it, it sounds very – it sounds like you've done something really, really bad. But here, Princeton's just handing them out like candy.

Nico Perrino: Yeah. Danielle only sought to confirm facts or get a quote, right? It's like, normal journalism. So …

Alex Morey: Totally. And of course, we look into it. We go, “Is there anything more here?” It was totally above board.

Nico Perrino: Because there has to be, right? It's such a crazy policy to have without any guardrails. But –

Alex Morey: You go, “This can't be happening.” But it is.

Nico Perrino: Aaron?

Aaron Terr: Also, it's definitely not the first time we've seen no contact orders abused in the context of higher education, right? Like you said, Alex, there are definitely circumstances where they're legitimate. If somebody's stalking someone, threatening them, what have you.

But I just was thinking of another example of a university police department. This was a case I had our public advocacy department. They issued a no contact order against a parent of a student who had contacted a faculty member a grand total of two times. Just to discuss her daughters grade in a course. And then the police department issued a no contact order against the parent prohibiting from having contact with any faculty member at the university. So, yeah, it's just clearly excessive.

Nico Perrino: I want to move now to Colombia, where on January 23rd of this year, the Columbia Law School Student Senate denied official recognition to a student group called Law Students Against Anti-Semitism after some student senators objected to the group's definition of anti-Semitism. The definition of anti-Semitism that would be used by the law students against anti-Semitism was the IHRA definition of anti-Semitism. The student senators accused the Law Students Against Anti-Semitism of using this definition because it could be used to stifle speech.

So, let's just level set as to what the IHRA definition – and this is the International Holocaust Remembrance Associations definition of anti-Semitism is. It's like a one or two page document. It's kind of long. So, I'm not going to quote it all. But it says that anti-Semitism is a certain perception of Jews, which may be expressed as hatred towards Jews. Rhetorical and physical manifestations of anti-Semitism are directed toward Jewish or non-Jewish individuals, and/or their property, toward Jewish community institutions, and religious facilities. And it says some examples that could be –

Alex Morey: Including, but not limited to.

Nico Perrino: Yeah, of anti-Semitism. Could include denying the Jewish people the right to self-determination, for example, by claiming that the existence of the State of Israel is a racist endeavor; applying double standards by requiring of Israel a behavior not expected or demanded of any other democratic nation; drawing comparisons of contemporary Israeli policy to that of the Nazis; and holding Jews collectively responsible for actions of the State of Israel.

This is an interesting case because FIRE opposes the IHRA definition of anti-Semitism. In part because these examples that it lays out as examples of anti-Semitism clearly include constitutionally protected speech. But we only oppose this definition when wielded by the state or institutions of higher education to police speech, to look for examples of unprotected speech. We've never opposed it when a private group merely wants to use it to track examples of anti-Semitism that have been happening on campus.

Indeed, that's why the definition was created by, I believe his name was Kenneth Stern, and the State Department. It was used as kind of an informal way to track anti-Semitism. But was never anticipated to be a tool used by the government to say, “Okay, that is anti-Semitism. That expression is anti-Semitic. And therefore it can be punished.” So, I –

Alex Morey: And you can tell because it's so broad.

Nico Perrino: Yes.

Alex Morey: I mean, that is not the kind – you would not see that in a statute or a law. I mean, it's a very general description of an idea.

[Crosstalk]

Aaron Terr: And the private group also can use it. Even if they want to use it to argue that this type of speech should be unprotected. I mean, that is their right too. We would disagree with them strongly and oppose that. But you have the right to argue that certain speech that is protected by the First Amendment shouldn't be.

Nico Perrino: Yeah. The group doesn't have any sort of authority within Colombia to police speech, other than kind of within its membership. It’s a voluntary association, it can do that. So, this definition can't be wielded to stifle speech. And even if you think that they're calling for censorship is bad, there's nothing against – as you say, Aaron – there's nothing that prohibits groups from calling for censorship. Or for advocating for policies that would chill speech. They just don't have any power to execute on them. It's required of those institutions with power, or those with authority, to not accept the demands for censorship.

Alex Morey: Student governments don't often know what it is that – I mean, I would assume that the Columbia Law student government would know more than your average student government. That said, what we'd like to see is – so when student governments are approving student fee funding or saying whether or not a student organization is allowed to be officially recognized, if the school promises free speech – if they're a private school that promises free speech – or if they're public school bound by the First Amendment, they have to do that in a viewpoint neutral way.

So, there can be requirements like have a constitution, and fill out this paperwork, and have an advisor. And once those things are done, there can be some level of debate. And then they're supposed to be approved, the funding or the recognition.

What we more often see, and what was happening in this case, was we're worried about approving this group because of its views. And that's viewpoint discrimination. And what was so interesting, of course, is that they're like, “This could be anti-speech.” Which is what we love. We just love it at FIRE when all sides claim free speech, and we have to step in and say what free speech actually means.

Nico Perrino: You can't deny a group recognition or benefits just because they might be anti-speech. You could have a censorship club and [inaudible - crosstalk] [01:01:19].

[Crosstalk]

Alex Morey: We would go to bat for the censorship club so hard. Let me just tell you. We would be all over that. We love it when we get to defend people calling for censorship. Because we'll say, “We don't love censorship, but we will defend your right to express your desire for it. It's protected speech.”

Nico Perrino: And to be clear, we're not contending here that the Law Student Association Against Anti-Semitism is calling for censorship. And in fact, we have no problem with the IHRA definition insofar as it just tracks what you perceive to be as anti-Semitic. It's when, again, those with power use the definition – and namely, its examples – to police speech, and punish those who fall within the definition, that we would then have a problem.

Alex Morey: Yeah. I mean, we'd have a problem if the group for – if the university was taking data from the group and saying, “Whenever you call this anti-Semitism, we will punish it.” But there's no evidence.

Nico Perrino: “We will investigate and punish it.” Yeah, but –

Alex Morey: Right.

Nico Perrino: We won the case, right? The group got official recognition.

Alex Morey: Yes.

Nico Perrino: Good work, Alex. So, there we go.

[Crosstalk]

Alex Morey: Yes. The president wrote back and said, “We got your letter. We just approved them. Have a nice day.” Paraphrased, but –

Nico Perrino: So, we're two for two on these campus cases that we're discussing. At Princeton and Columbia. We also –

Alex Morey: If they would only all go so smoothly.

Nico Perrino: I know, right? We had another sort of victory at Columbia. The Columbia University Senate passed a resolution for the university to adhere to an institutional neutrality standard. Kind of modeling the Kalven Report. And for those of our listeners who haven't heard us discuss institutional neutrality before, it's the idea that a college or university is the host and sponsor of critics. It is not itself the critic. So, therefore, it does not take positions on social and political issues. The sort of thing that got Claudine gay, in part, in trouble. The reason she wrote and rewrote seven different statements in the post October 7th attacks on Israel.

There is a lot of interest by colleges and universities right now in adopting a position on institutional neutrality, à la, the University of Chicago's Kalven report. Because they're putting themselves in no win situations when they opine on some political and social issues, and not others. When they opine on Donald Trump's election, or the war in Ukraine, or the Dobbs decision on abortion. And then they're silent on the attacks on Israel, on October 7th. People are like, “Well, what gives? What is guiding you to determine what you issue statements on and take positions on, versus other issues?”

And then there's just kind of the other consideration, that if you want an environment for academic freedom, and open inquiry, and robust discourse. When the senior levels at the administration put their thumb on the scale and say, “This is what our institution believes these are our values”, it creates an added burden. And it chills the discussion on campus surrounding those contentious social and political issues. There's a lot of debate surrounding the abortion issue. There's a lot of debate right now surrounding the war in Ukraine.

There's obviously debate every presidential election. When Harvard comes in and commends President Biden on winning election, but says, at the same time in 2016, that they recognize that a lot of students are experiencing trauma surrounding Donald Trump's election, that is a statement in and of itself. And so a lot of universities right now are saying, “We're getting out of this business.” University of North Carolina system did it. Vanderbilt University did it. The University of Wyoming has adopted a Kalven principals statement. And now at Columbia University, the University Senate has passed it. But it's, I think, up to the university administration and perhaps the board of regents or trustees of actually adopting a formal position.

Alex Morey: But a good sign at our former worst school for free speech a few years ago. I mean, even the worst school for free speech can turn it all around, and have toxic positivity around this idea.

Nico Perrino: Let's not give it too much credit until the administration actually takes a stand on this. Sometimes the faculty can be good, and the administration can be bad. But the administration does deserve credit for its ruling on making that Law Students Against Anti-Semitism group officially recognized.

Alex Morey: Well, the law students association themselves made that decision. So, good on them as well. We gave them the law, and they briefed the cases, and figured out that we were right, I guess.

Nico Perrino: So, we'll watch – we'll continue to watch Colombia. I want to move now to my alma mater, Indiana University. Which is having a go of it.

Alex Morey: Really? Truly? We're like another one? Another one. To quote the great poet of our time. Who is that? DJ Khaled? Oh my God.

Nico Perrino: So, essentially at Indiana University, they had this long planned art exhibit by the artist Samia Halaby, who is a Palestinian American abstract artist. They had created all the materials for it. And it was set to open, I believe, in January. But the university leaders decided that it was going to be cancelled, citing vague securities concerns.

IU has been under pressure from the state legislature. There's a congressman, a state congressman, Jim Banks, who threatened to withhold funding. Or no, this is a federal congressman, Jim Banks, who had threatened to withhold federal funding from the university if they don't adequately address perceived anti-Semitism on campus.

So, that's one issue, right? You've got this art exhibit that was already planned. All the promotional materials printed for it. And then the university decides, “Nope. Can't have the Palestinian American artist art exhibit coming up.” Then you have the background here, where there's threats to its funding.

You also have this faculty member, Abdulkader Sinno, who has been barred. He's a tenured professor. Has been barred from teaching until this fall, after he is alleged to have improperly booked an event space on behalf of a student led group, the Palestine Solidarity Committee. Now, the Palestine Solidarity Committee wanted to host this man, Miko Peled. I hope I'm pronouncing that correctly. He's an Israeli American activist, who has argued for the creation of one democratic state with equal rights for Israelis and Palestinian.

So, as many student groups know, when you are booking a room, or you want to become a registered student organization, you need to have a faculty advisor sign off on it. So, Abdulkader Sinno submitted a form to reserve the room so that this Israeli American activist could speak to this Palestine Solidarity Committee. A few hours after he submitted the request, the reservation was approved.

Eight days later, he was called in by the chair of the Middle Eastern Languages and Cultures Department, and told that he made a mistake on the form when he submitted it. Sino had listed Middle Eastern languages and culture as his department. And as a result, given the false impression that this was a department sponsored or sanctioned event. And so it sounds like there was just confusion surrounding the submission of this form.

And you can imagine it. You're looking at a form, right? You're filling out all your information. And it says department. And you list your department because that's the department you're a part of. But in this case, I guess on this form, that actually means like, “Is there a department that's sponsoring the event?” Sino said, “This is an honest mistake.” He assumed the department field simply meant what I said it meant – or might have meant. And he resubmitted the form. Or he asked the Palestine Solidarity Committee to resubmit the form.

It was denied. It was denied by the university because of alleged short notice, and because they were concerned that there wouldn't be security – enough security necessary to protect the event on such short notice. The interim dean of one of the schools at Indiana University claimed that Sino had falsely or incorrectly indicated the room reservation was for an academic event, not for a student organization. That he used “forgery or unauthorized alteration of university documents” to reserve the university space.

So, essentially what you have here is a de minimis paperwork error that you could imagine someone would make.

Alex Morey: No ill will intended. Totally.

Nico Perrino: And they barring a tenured professor from teaching until next fall as a result.

Alex Morey: Because they saw a little error that they thought, “We can get him on this one.”

Nico Perrino: It's absolutely bullshit. I was the president of a student organization at Indiana University. These were like just simple forms that you would submit. And they always got approved if a room was available. And they were hosting it here, in Woodburn, which is like a giant academic building. And there are tons of rooms that students can use to reserve spaces to get a guest speaker.

And the sort of like, hemming and hawing over whether it's an academic event or an event for a student organization? Student organization events can be academic events, right? It doesn't need to be sponsored by a department for it to be an academic event. So, there, you're just kind of hemming and hawing, and debating over semantics. And they're barring a tenured professor from teaching as a result of it. So, it's –

[Crosstalk]

Alex Morey: If universities were focused on their core mission of education, they should be falling all over themselves to facilitate student discussion, speakers, whenever possible. And if there is some vague security concern or whatever, they should be – send a security guard down there. Foot the bill. It's very clear here that their goal is to – is not to facilitate this speech, but instead shut it down because it's controversial. And clearly, they were looking for any possible avenue through which they thought they might legally be able to do it.

Aaron Terr: Yeah, [inaudible - crosstalk] [01:12:15].

[Crosstalk]

Nico Perrino: Controversially afraid of the funding threats from Jim Banks. Aaron?

Aaron Terr: Yeah. I mean, it wouldn't be the first time that a university was using some bullshit pretext for censorship. They do this all the time, administrators, where they know that – they seem to know that they can't punish speech just based on its content or potential to cause controversy. So, they start looking all over for like, “What's a, on the surface, a legitimate reason that I can stop the speech from happening.”

Or another classic example – right? – is when a professor says something controversial, and the university wants to punish him for it, but they can't. So, they start looking to his entire history. Like, “Let's go back 20 years and see if he did something that might have been against our rules.” And so –

[Crosstalk]

Nico Perrino: “Show me the man, and I'll find you the crime” is the quote.

[Crosstalk]

Aaron Terr: Right. Right. Exactly.

Nico Perrino: Yeah. Well, everyone loves safety, right? Everyone wants to be safe. So, universities often fall back on this justification to ban protected expression on campus. And we've seen it time and time again. We've even litigated a case involving security fees that were levied against a student group that wanted to host actor and social justice activist – rapper, excuse me, and social justice activist Boots Riley at Western Michigan University. We won that case. It's just a tired, tired justification for censorship.

And it didn't even bear out in this case. So, despite being denied the room reservation, the event took place as it's scheduled as an act of civil disobedience. And this is like the second act of civil disobedience I've seen by students who have been faced with bullshit censorship justifications. Our listeners might recall the situation at the University of Pennsylvania, when a student group wanted to screen the documentary Israelism. And University of Pennsylvania denied their request to do so based on security concerns. They screened it anyway. Guess what happened? Nothing. A conversation. Same thing happened here at Indiana University.

Aaron Terr: And also, I think every time we've had a case where the university has said they have legitimate security concerns about an event to justify canceling it, and we filed – when it's at a public university, or even sometimes a private university, you can file a public records request with the local police department. If they say they have had contact with the police department. If it's a public university, you can get public records from the university itself. And we've done that to see, “Okay, let's see. Let's have the university show its cards over its concerns.”

Every time we've done that, no actual true threats have shown up. I mean, at least in any case that I was involved in. It was always just like a lot of harsh criticism. Maybe people using harsh language or maybe saying they're going to show up to protest at most. But that alone is not – that's not like a true security threat that would justify shutting down an event.

Nico Perrino: All right. I want to turn to one last case. Not a post October 7th case. Although it did happen after October 7th. It's not related to the Israel Hamas war. So, you have this guy, Michael Cassidy. He's a former congressional and legislative candidate from Mississippi. Who walks into the Iowa State Capitol and destroys a display erected by the Satanic Temple of Iowa. The idol was of Baphomet. The display was a display of the idol of Baphomet, who is, I guess, a rogue figure with a goat head. People might –

Alex Morey: Satanists love it.

Nico Perrino: Yeah. You've probably seen it before. You think of Satanists, it's one of the images that comes to mind.

Aaron Terr: I definitely feel like I've seen that image in horror movies too.

Nico Perrino: Yes. Yeah, yeah.

Alex Morey: From your nightmares. There he is.

[Crosstalk]

Nico Perrino: Maybe our editors can put up a photo of Baphomet. In any case, Michael Cassidy had been charged with felony mischief and a hate crime. Going to a public space, in the case of a state capitol, or a private space and destroying property is not protected expression. I think we can all agree on that one, right?

Aaron Terr: Agreed.

Alex Morey: Agreed. And I think the hate crime thing was because of – it was like because of a targeting a particular religion.

Nico Perrino: Yes, yes. And the IRS says that the Satanic Temple is a tax exempt church. You might agree with that. You might disagree with it. But it’s under law.

[Crosstalk]

Alex Morey: But we all have to agree with the IRS. So …

Nico Perrino: Yes. Under pain of audit. But the members of the Satanic Temple had also received permission to install the exhibit. So, fast forward to February 5th. Iowa doesn't like that they can have satanic displays in the Iowa State Capitol. So, you have Iowa Senator Sandy Solomon introduce a bill which would prohibit displays, symbols, or the practice of satanic worship on public property, in public schools, or on any state owned property. And the bill would also prohibit the recognition of Satanism as a religion.

Producer Sam pulled some other interesting text from the bill that I think is worth reading. The bill says, “The General Assembly finds that good and evil exist. The supreme being upon whom we depend for continued blessings, personifies that which is good.”

Aaron Terr: Baphomet?

Nico Perrino: Baphomet. I think they have a different supreme being in mind there, Aaron. They continue in the bill, “Evil is personified in the creature known as Satan. It is the duty of the government to play an appropriate role in protecting the inhabitant residents of Iowa from evil, while encouraging and facilitating good.”

Alex Morey: No, it's not. What happened to separation of church and state? Oh, my God. What's going on?

Nico Perrino: Well, can – Aaron and Alex – the state of Iowa ban and target just the Satanic Temple from displaying its imagery, its symbols, or its people from practicing on public property, in public schools, or in any state owned property?

Aaron Terr: No. And look, I'm no fan of Satan personally. But this is just a blatantly viewpoint based restriction. Public forums, when the government opens up public property to expressive activity, like on a public – or there are traditional public forums – right? – like streets, sidewalks, and parks where Americans have historically exercised their First Amendment rights. And the government, it's just a cardinal rule of the First Amendment, that you can't discriminate or exclude people from those public forums based on their views. And that's clearly what's happening here. And the same idea applies when the government establishes a public forum. Like in a – it sets aside space in the statehouse, where people can have displays. The same rules apply.

[Crosstalk]

Nico Perrino: Which is presumably how the Satanic Temple got that Baphomet display.

Aaron Terr: Right. Exactly. And by the way, if you're religious, you should also – you should fully support the principle of viewpoint neutrality. Because it equally protects religious groups right to access these public forums with their views. And there actually are several Supreme Court decisions holding that exclusion of religious groups from government property that has been made available for expressive use, is unconstitutional.

So, for instance, a public school opening its facilities after hours for community groups to use, you can't exclude a group just because they want to use it for religious activity. Because sometimes you see the argument from the other side that say, “Well, that's actually a violation of the Establishment Clause for the government to allow that type of activity on its property.” But it's not, as long as it's the group's own speech, and not the government’s speech trying to establish a religion.

Nico Perrino: Yeah. You can't have a situation where the government opens up a forum, or set a public forum, and allows any viewpoint to be expressed so long as it's not a religious viewpoint. That would be strange. And Aaron, you mentioned that there are some Supreme Court cases on point here. I think the most relevant one is probably Shurtleff v. Boston from 2022, in which the City of Boston had opened up its flagpoles for groups to kind of fly their flag alongside the city of Boston flag, the POW/MIA flag. And over a 12 year period, the city had approved 284 flag raising events. And had never denied a flag raising application.

Enter Camp Constitution, which is an organization that seeks to “enhance the understanding of the country's Judeo-Christian moral heritage.” They wanted to fly a Christian flag for its event. It was denied by the City of Boston. And the Supreme Court said that the flag raising program did not constitute government speech. So, it could not, therefore, refuse to fly a private religious organizations flag, and meanwhile, approve other viewpoints or other organizations flags here.

So, it's almost exactly on point. You can't allow other religious groups or other viewpoints to have displays on property of the state capitol in Iowa, while meanwhile excluding only that viewpoint that “Love Satan”, I guess, in this case.

Alex Morey: Yeah. I mean, they don't have to let like – I don't know. I mean, they don't have to allow the menorah in the capitol. And they don't have to allow the Nativity. They can say –

Nico Perrino: They don't have to allow displays in the capitol. But if they allow displays in the capitol, you can't discriminate based on viewpoint.

Aaron Terr: Yeah. You don't have to open up a public forum in a place like that. But once you do, then the First Amendment rules apply. And then the No. 1 rule is that there's no viewpoint discrimination allowed.

Nico Perrino: All right. All right, folks. Well, I think there's probably more First Amendment news that we could cover, but we're an hour and 20 minutes into it, so I think we're going to have to leave it there. Alex Morey, the director of FIRE’s campus rights advocacy program, joined us. Along with Aaron Tur, the director of FIRE’s public advocacy program. Alex and Aaron, thanks for coming on the show.

Alex Morey: Thanks, Nico.

Aaron Terr: Thanks, Nico.

Nico Perrino: This podcast is hosted by me, Nico Perrino, and produced by Sam Niederhauser and myself. It's edited by my colleagues Aaron Reese and Ella Ross. Sometimes Chris Maltby as well. You can learn more about So to Speak by going to our YouTube channel, where we'll have video of this and other conversations from the podcast. You can also follow us on a number of social media channels. Those can be found in the show notes here. We do take reviews. Reviews help listeners find this show. So, please leave it wherever you listen to this podcast. And if you have feedback for us as well, go to So to Speak at thefire.org.

And finally, don't forget, we are now on Substack. So, if you want to head over to Substack, subscribe to the show. There's also a way to become a FIRE member as well, and get access to exclusive once monthly conversations with me and usually FIRE staff. But some year – some months, we might bring in outsiders to come and have a conversation with you. If you want to get access to that members only conversation once a month, please either make a donation to FIRE at the membership level, which is $25 a year. Or become a paid subscriber to So to Speak on Substack. And until next time, I thank you all again for listening.